This is an appeal from a judgfnent of conviction for the crime of a breach of the peace. The indictment, omitting the formal opening and conclusion, as as follows: “The grand iurv of Howard Countv, in the name and bv the authority of the State of Arkansas, accuse P. W. Schaal of the crime of breach of peace commi'ted as follows, to-wit: The said G. W. Schaal in the county and State aforesaid, on the 3rd day of March, 1921, did unlawfully make use of violent, abusive, and insulting language toward and about one E. K. .Walden and in the presence and hearing, said language in its common acceptation being calculated to arouse to anger the said E. K. Walden and cause a breach of the peace, against the peace and dignity of the State of Arkansas.”
The court overruled a demurrer to the indictment and also a motion in arrest of judgment. Section 2774 of Crawford & Moses’ Digest reads in part as follows: "If any person shall make use of any profane, violent, vulgar, abusive, or insulting language toward or about any other pérson in his presence and hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine, etc.”
The indictment charges that the insulting language was "toward and about E. K. Walden and in the presence and hearing.” The use of the word "the” before the word "presence,” taken in connection with the other words in the sentence just quoted, could not have meant anything else -than that the insulting language was used in the presence and hearing of E. K. Walden. The context shows that the word "the” was intended for the word “his,” and the use of the word "the” instead was a mere clerical misprision. The indictment charges a public offense under the above statute. The indictment follows substantially the language of the statute and is sufficient. There was no error therefore in overruling’ appellant’s demurrer and motion to arrest. Blais v. State, 94 Ark. 327; State v. Perry, 94 Ark. 215; Evans v. State, 58 Ark. 47.
There was testimony on the part of the State tending to show that one Hodge was appointed to act as constable in a replevin suit to take possession of a machine whibh at the time was at the home of the appellant. Hodge was accompanied to appellant’s home by E. Ej. Walden. When they arrived at appellant’s house, Hodge showed appellant the writ in his hands-. The appellant objected to the service of the writ on the ground that it -did not show that Hodge had been legally appointed constable to serve the same, Hodge not being the duly elected constable. When this controversy arose, Hodge referred appellant to Walden, who was an attorney for the plaintiff in thp civil action. Walden stated he thought the papers were regular. Thereupon appellant said to Walden, “What in the hell have you got to do with it?” Walden replied, “I haven’t got a thing--only I am attorney in the case.” Appellant then said, “By Gr — , you will leave here; I am a good mind to take a billet of wood to you.” Walden remonstrated with him, and appellant further said, “By —, you will leave here. If you don’t, I will go in the house -and get my pistol.” This all occurred at appellant’s home outside the gate.
After defining the offense in the language of the statute, the court instructed the jury that the burden was on the State to prove the guilt of the defendant beyond a reasonable doubt, and further said, “The defendant. in this case claims the prosecuting witness, Walden, accompanied Mr. Hodge there for the purpose of serving the papers, and did not have legal authority for that purpose, and that E. K. Walden, after he reached the place to serve the papers, was the aggressor and caused the disturbance. If you find this to be the -case, you may take that fact in mitigation of the punishment of the defendant, if you find the defendant guilty.” The appellant duly excepted to that portion of the instruction which said, “you may find in mitigation only,” and asked the court to instruct the jury in effect that, if Hodge was not duly appointed special agent to serve the writ, then he was a trespasser, and the defendant would be justified in forcing them to leave the premises. The court refused appellant’s prayer, to which ruling the appellant duly excepted.
The court did not err in its ruling. The fact that Hodge was not legally appointed special agent to serve the writ could furnish no 'justification to appellant in using profane, abusive and insulting language toward and about Walden. 8 R. C. L. § 307, p. 286. Even though Walden and Hodge were proceeding illegally, and in that sense were trespassers, nevertheless such fact would not justify the appellant in using profane and opprobrious language toward and about Walden. The court correctly instructed the jury that they might consider the fact that Hodge and Walden were proceeding illegally in mitigation, if they found the appellant guilty as charged.
There is no error, and the judgment is therefore affirmed.